“Supremacy of EU Law in National Criminal Trials”
| Published date | 01 June 2009 |
| Author | Anke Müller-Jacobsen |
| DOI | 10.1177/203228440901a00102 |
| Date | 01 June 2009 |
| Subject Matter | Analysis & Opinions |
New Journal of Eur opean Crimina l Law – Special Edit ion 7
ANALYSIS & OPINIONS
“sUPReMaCy of eU laW In
naTIonal CRIMInal TRIals”
A M-J*
“e penal provisions of Section 34(2)(3) of the Foreign Trade and Pay ments Act (AWG) in
conjunction with Section 5c(2) of the Foreign Trade and Payments Regulation (AWV) are not
compatible with the supremacy of EU law and are therefore inapplicable (Article 249(2) of the
Treaty Establishing the European Commu nity (EGV)). For this reason, s ucient evidence of
a criminal act fail s on legal grounds.”
is sentence, w hich reads as if it comes from the d ream of a keen c riminal defence
lawyer, ac tually stems from the s tated grounds in a recent judgment.1 e Higher
Regional Court (OLG) in Munich rejected a charge brought by the Federal Public
Prosecutor as it held criminal charges under the German Foreign and Trade Payments
Act (AWG) to be contrary to Community law. A German-Iranian busi nessman had
supplied spare parts for industrial facilities and machiner y to Iran. One of the charges
brought against him was a criminal breach of export licence re quirements pursuant
to the Foreign and Trade Payments Act (AWG). e actions a re alleged to have been
capable of si gnicantly damaging the foreign policy and security interests of t he
Federal Republic of G ermany, a characteristic th at seems to qualify a mere breach of
administr ative regulations as a cri minal oence. e Federal Cou rt of Justice (BGH)
will h ave the nal decision a s to whether the rejec tion will sta nd. Regardless of th is,
the grounds outlined by the Higher Regional Court are deserving of respec t and
critical dis cussion. e following is an outline of the most import ant issues.
1. SUPREMACY OF COMMUNITY LAW
Primary C ommunity law applies in all Member States and has precedence over
national law. If national legislation conicts with primar y EU law, it may not be
applied. is applies also to Regulations of t he European Union (in this speci c case
to Regu lation (EC) No. 1334/20 00 and Reg ulation (EEC) No. 2603/69); pursuant to
Article 2 49(2) of the Treaty E stablishing the Eu ropean Community (EGV), they are
* Rechtsanwältin , Ignor & Partner GBR, Ber lin.
1 Higher Regional Court (OLG) Munic h, Decision dated 19 March 20 09 Ref: 6 St 10/08.
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